US v. Phillips.
Judge Stucky’s opening paragraph summarizes the issue and holding:
To establish a violation of clause 2 of Article 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2006), the government must prove beyond a reasonable doubt that (1) the accused engaged in certain conduct; and (2) that the conduct was of a nature to bring discredit upon the armed forces. We granted review to consider the necessary quantum of proof to establish the second element. We hold that evidence that the public was actually aware of the conduct is not necessarily required. Furthermore, proof of the conduct itself may be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that, under all the circumstances, it was of a nature to bring discredit upon the armed forces. The evidence was legally sufficient in this case.
Here's a key fact from this litigated (at least on this specification) case: No witnesses testified that they found Appellant’s conduct to be service discrediting. No witnesses testified that they had become aware or would have become aware of Appellant’s conduct, absent Appellant’s admission to SA Bonilla.
The majority opinion reviewed the NMCCA's opinion in Phillips and found ambiguous language regarding the terminal element of Article 134, Clause 2 ("of a nature to bring discredit upon the armed forces"). The service court deemed Phillips' possession of actual child pornography per se discrediting. CAAF held that interpreting per se to mean "as a matter of law" would be error, as such a conclusive presumption would violate the constitutional standard requiring proof of each criminal element beyond a reasonable doubt. The majority was unable to divine whether the CCA intended that reading of its verbiage or the government's proffered rationale that the service court intended per se to mean "standing alone, without reference to additional facts." This quandary prompted the Court to send the case back to the NMCCA for a factual sufficiency review.
Despite the remand, the majority turned to the question of the legal sufficiency of the child pornography conviction and rejected the novel argument that Clause 2 of Article 134 wasn't historically intended to apply to active duty members. The Court also shot down the often-argued idea that the public must know the facts related to the conduct at issue in order for it to be criminal under Clause 2, finding that witnesses need not be called specifically to speak to the issue of discredit. On the sufficiency of the evidence, the Court had this to say:
The trier of fact must consider all the circumstances, but such facts -- including the fact that the conduct may have been wholly private -- do not mandate a particular result unless no rational trier of fact could conclude that the conduct was of a “nature” to bring discredit upon the armed forces. For example, the extent to which conduct is constitutionally protected may impact whether the acts of record are sufficient to support a conviction.
In her dissent, Judge Ryan agreed with the majority's standard for finding legal sufficiency ("any rational could have found the essential elements of the crime beyond a reasonable doubt"). She also concurred that conclusive presumptions of guilt on elements cannot lawfully form the basis for convictions. The problem for the dissenters lay with the evidence (or lack thereof) presented on the terminal element of Clause 2 of Article 134 in this case, noting in a footnote that a guilty plea to the offense would have been improvident if the plea inquiry skipped over that element.
Because the Government failed to present either evidence or argument on the element of service discredit and the military judge may have applied pre-Miller law that some conduct is per se service discrediting, I would set aside the sentence and the finding of guilty on the child pornography charge and authorize a rehearing.
Perhaps this case foreshadows what we might expect in the Fosler trailer park of cases CAAF has yet to decide this term?